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COMMONWEALTH PENNSYLVANIA v. JAMES DAVIS (02/14/89)

filed: February 14, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES DAVIS, APPELLANT



Appeal from the Judgment of Sentence entered January 22, 1986 in the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 490, 492 and 493 April Term 1984.

COUNSEL

Mitchell S. Strutin, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Olszewski, Kelly and Hester, JJ.

Author: Kelly

[ 381 Pa. Super. Page 486]

James Davis, appellant, appeals nunc pro tunc from the judgment of sentence imposed following his convictions of first degree murder, conspiracy and possession of an instrument of crime. We affirm.

Appellant has raised four contentions of error for our consideration on this appeal. Primarily, we are concerned with appellant's first contention, i.e. that the trial court erred by denying his motion for a mistrial and admitting into evidence the testimony of a police officer regarding a

[ 381 Pa. Super. Page 487]

    visibility/identification experiment which was offered to corroborate the testimony of the Commonwealth's principal witness whose testimony regarding her observation of the crime had been impeached by the defense as not credible. Upon our review of the record, the briefs, the applicable authorities and caselaw, we find that this contention, as well as appellant's three other contentions, are without merit. Consequently, we affirm the judgment of sentence.

FACTS AND PROCEDURAL HISTORY

On March 19, 1978, between 9:30 p.m. and 9:45 p.m., appellant and Willie Truesdale*fn1 (hereinafter "Truesdale") were engaged in a fight with Melvin Fields on the sidewalk in front of 1904 N. Napa Street, Philadelphia. Appellant and Truesdale punched Fields and knocked him to the ground. After Fields had fallen, appellant and Truesdale ran to the corner of Napa and Berks Streets where they stopped, turned around, and returned to the place where Fields was lying. At that point, they stabbed Fields three times in the chest and then fled the scene together. Fields died a short time later as a result of knife wounds to his heart and lungs.

On March 5, 1984, appellant was arrested and charged with murder, conspiracy and possession of an instrument of crime. On November 9, 1984, a jury, presided over by the Honorable Joseph T. Murphy, found appellant guilty of first degree murder, conspiracy and possession of an instrument of crime. On January 22, 1986, appellant's post-trial motions were denied and he was sentenced to a term of imprisonment for life on his first degree murder conviction and a concurrent term of five to ten years imprisonment on his conspiracy conviction. A notice of appeal was filed and subsequently dismissed on July 14, 1986, without prejudice, for failure to file a brief. On February 26, 1988, an order

[ 381 Pa. Super. Page 488]

    entered by the Court of Common Pleas of Philadelphia County granted appellant the right to appeal nunc pro tunc. Appellate counsel was appointed and this timely appeal followed.

I. MISTRIAL: VISIBILITY/IDENTIFICATION EXPERIMENT

Appellant first contends that the trial court erred when it denied his request for a mistrial after the court overruled his objection to the Commonwealth's proposed testimony concerning a visibility/identification experiment conducted by Sergeant Michael Ryan and Lieutenant Thomas Grady. Appellant argues that Sergeant Ryan's testimony regarding the visibility/identification experiment was irrelevant and prejudicial, and thus the trial court erred when it denied his motion for a mistrial. We do not agree.

On the first day of trial, Friday, November 2, 1984, the principal Commonwealth witness, Fay Shaw, testified during direct and redirect examination that between 9:30 p.m. and 9:45 p.m. on March 19, 1978, she witnessed appellant and Truesdale stab Melvin Fields in front of 1904 Napa Street from her porch at 3102 Berks Street. She testified that she had known appellant for six or seven years before the incident. She stated that as she was standing at 31st and Berks, she looked across the street and watched appellant and Truesdale punching another man for about five minutes, and that after the man fell down, appellant and Truesdale ran to the end of Napa Street. They stopped at the corner of Napa and Berks Streets and then turned back to where Fields was lying. When they returned to Fields, they bent over him holding a 'shiny object' which looked like a knife and struck him in the chest area about two or three times in an up and down motion. Ms. Shaw was unable to see which of the two, appellant or Truesdale, held the knife. Ms. Shaw stated that after the stabbing, the two men ran away together. Throughout the entire incident, Ms. Shaw was standing on her front porch at 31st and Berks. (N.T. 11/2/84 at 73-80, 120).

[ 381 Pa. Super. Page 489]

Ms. Shaw was questioned extensively by counsel for appellant and counsel for co-defendant Truesdale during cross and re-cross examination about her ability to see the incident, as well as the alleged impairment of her ability to see and to recollect the incident due to her acknowledged consumption of beer and marijuana prior to the incident. Ms. Shaw was questioned specifically about: the weather conditions on the night of the incident; the lighting of the area in which the incident occurred; how many other people were present in the area during and after the incident occurred; whether appellant or Truesdale had a beard, a mustache or sideburns; whether appellant or Truesdale were wearing glasses, hats, sneakers or shoes; whether appellant or Truesdale were wearing coats and, if so, what color were the coats; whether Fields was lying on the street, the pavement or the steps; whether she could see him lying on the pavement; whether it was possible to see the incident from where she stood; whether appellant or Truesdale held the knife; how recently she had seen appellant prior to the incident; how could she tell the assailant was appellant and not another black man; and whether she was positive about what she saw.*fn2 See generally N.T. 11/2/84 at 95-119.

On Monday, November 5, 1984, the second day of trial, the Commonwealth called Police Sergeant Michael Ryan to testify. The defense promptly requested an offer of proof to which the prosecutor responded:

Your Honor, Sergeant Ryan has no real connection with this case other than he was available Saturday night to go out to the scene and to look from 3102 Berks to 1904 Napa, and he will testify that he did that, and he ...


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